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Wolfe v. State

Court of Criminal Appeals of Texas

February 15, 2017




          Alcala, J.

         In this opinion, we address whether expert testimony on the subject of abusive head trauma is reliable. Jennifer Banner Wolfe, appellant, presents this issue in her petition for discretionary review following her conviction in a bench trial for first-degree-felony injury to a child after an infant under her care sustained serious internal head injuries. The primary evidence presented at appellant's trial was the testimony of the State's three expert witnesses, each of whom opined that the complainant's injuries were indicative of intentionally inflicted impact, also known as abusive head trauma, rather than accidental injury or a preexisting medical condition as appellant had suggested. Appellant objected to the State's experts' testimony on the basis that it was unreliable, but the trial court overruled her objection. On discretionary review, appellant challenges the court of appeals's ruling upholding the admissibility of this evidence on two bases. First, appellant contends that the court of appeals erred by concluding that the experts' testimony on abusive head trauma "based solely on a constellation of symptoms" was sufficiently reliable so as to render it admissible under the rules of evidence. Second, appellant contends that the court of appeals incorrectly determined that her appellate challenge to the reliability of the experts' testimony on abusive head trauma did not fairly include the issue of whether the expert testimony was unreliable "given this specific injured party's history."[1] With respect to appellant's contention challenging the reliability of the experts' testimony of abusive head trauma based solely on a constellation of symptoms, we agree with the court of appeals's assessment that the experts' testimony was sufficiently reliable so as to warrant a conclusion that the trial court did not abuse its discretion by admitting that evidence, and we thus overrule appellant's complaint as to this matter. With respect to appellant's contention that the court of appeals erred by declining to consider this particular complainant's history in conducting its reliability analysis, we conclude that the court of appeals's analysis reflects that it did consider whether the experts' opinions were reliable in light of this complainant's particular injuries. Further, to the extent that appellant complains that the court of appeals improperly declined to consider the complainant's medical history of prior bleeding in the brain as a basis for rejecting the reliability of the State's experts' testimony, we conclude that appellant did not rely on the complainant's history of prior bleeding as a basis for arguing that the experts' opinions were unreliable, and thus the court of appeals did not err by declining to address that issue. Finding no error in the court of appeals's analysis, we overrule appellant's grounds for review, and we affirm the court of appeals's judgment upholding appellant's conviction.

         I. Background

         Appellant ran an in-home daycare and was a licensed child-care provider. One morning, one of the children in appellant's care, seven-month-old Jack, sustained internal head injuries that caused him to lose consciousness.[2] After appellant called 911, fire department officials arrived on the scene and began giving Jack CPR. By the time paramedics arrived, Jack's skin had turned blue, he did not have a pulse, and he was not breathing. Appellant told paramedics that, after feeding Jack, she had set him down on a foam-padded floor, he was crying and screaming loudly, and then he "just fell back unconscious."[3] While he was being transported in the ambulance, as a result of CPR and other advanced life-support procedures, Jack's pulse and spontaneous breathing resumed. By the time he reached the hospital, Jack was awake and crying.

         The doctors who examined Jack at the hospital determined that he needed immediate surgery to stop bleeding in his brain. Jack's injuries included a subdural hematoma, retinal hemorrhaging, and brain swelling-symptoms sometimes referred to as the "triad" of symptoms associated with abusive head trauma.[4] He had no fractures, bruising, or other external physical injuries. A pre-operative CT scan of Jack's brain showed the presence of two older stages of blood in his brain as well as new bleeding, indicating that there had been bleeding in his brain in the past. Dr. Roberts, a pediatric neurosurgeon, performed an emergency craniotomy to evacuate the hematoma and to alleviate pressure in Jack's brain.

         Trial Proceedings

         Appellant was charged with the offense of first-degree-felony injury to a child. The indictment alleged that she knowingly caused serious bodily injury to Jack by shaking him and/or by striking him against a hard surface. Appellant pleaded not guilty. She waived her right to a jury trial and the case proceeded to a bench trial.

         In anticipation of the likelihood that the State would present expert testimony at trial, appellant filed a pretrial motion to determine the admissibility of that evidence. In her motion, she requested a hearing pursuant to Rules of Evidence 702, 703, and 705, as well as Daubert v. Merrell Dow Pharmaceuticals, Inc., [5] to determine the experts' qualifications and the reliability of the evidence. The trial judge granted appellant's motion for a hearing as to each of the State's expert witnesses.

         At the commencement of the trial proceedings, appellant's counsel addressed the basis for her challenge to the reliability of the State's experts' testimony in this case. Counsel stated,

[I]n this particular case, given the nature of the evidence as I believe it's going to be introduced, I believe the State is going to rely on shaken baby syndrome as virtually the only proof of intent as well as causation in this particular case. And that is a-the scientific basis and theory that I want to challenge, and I'm urging to challenge in a Daubert/Kelly 702 through 705 hearing.
So I think I needed to put that on the record at this point challenging any references to shaken baby syndrome and that we are challenging the underlying principle as unreliable in the scientific community and not reliable in this case under Daubert and Kelly.[6]

         Appellant's counsel then asked the trial court for a "running objection to any mention of [ ] shaken baby syndrome." She further requested that the trial court carry the motion with the trial and make a ruling on her motion after hearing all the experts' testimony in the case.[7]The trial court agreed to carry appellant's motion with the trial.

         In its case in chief, the State offered into evidence the testimony of three expert witnesses. The first of these witnesses was Dr. Roberts, the pediatric neurosurgeon who had performed Jack's craniotomy. Dr. Roberts stated that he had been actively practicing pediatric neurosurgery for approximately four years and that he had treated "many" children under the age of five who had suffered head trauma.[8] He testified that Jack had presented with a subdural hematoma, or bleeding beneath the brain's dura, brain swelling, and compression of the brain that was "worrisome for surviving." While performing Jack's craniotomy, Dr. Roberts discovered that Jack had what was likely an avulsed bridging vein that had been pulled off the point where it ordinarily would connect to the sagittal sinus, resulting in brisk bleeding that was in turn causing compression of the brain.[9] Dr. Roberts agreed with the suggestion that an avulsion of a bridging vein does not just happen within the course of everyday life, but instead would require some sort of force to cause it. Specifically, he stated, that, in the typical case, the cause will be "high-energy impact[ ] where force is sufficient to move the brain far enough away from the covering of the brain to stretch those bridging veins and tear them or avulse them." Although he indicated that Jack's injuries could not have been caused by shaking alone, Dr. Roberts stated that the injuries could have been caused by shaking plus impact or striking Jack against a hard surface, such as the floor. When asked how he could explain the lack of external injuries to Jack in light of his opinion that some impact was necessary to cause Jack's injuries, Dr. Roberts indicated that, if the "surface was a non-marking surface, say, something softer than concrete, we would not necessarily have to have a bruise, or it may not be evident as a bruise." He also found it significant that Jack had retinal hemorrhaging and retinal tearing, or retinoschisis. He stated that Jack's combined symptoms were "all classically associated with high-energy input to the head." He indicated that, typically, there would have to be acceleration and deceleration in order to cause the types of injuries that Jack presented with and that his injuries did not "fit the story" of Jack merely falling backwards onto a padded surface from a seated position. Dr. Roberts opined that, "in a normal, healthy brain, we see car accidents or falls from second-story windows to cause those types of injuries." As a result, it was his opinion, based on the "constellation" of symptoms, that Jack's injuries were caused by non-accidental trauma. Specifically, Dr. Roberts stated, "[B]ased on our history of seeing other non-accidental traumas with these exact same constellation of symptoms, then we would diagnose this as a . . . subdural hematoma due to trauma and given the story, non-accidental because the story does not match the-the story doesn't match what I'm seeing clinically." Dr. Roberts agreed with the suggestion that his opinion was based on his training, experience, and education within pediatric neurosurgery, and that the basis for his opinion was generally accepted within the medical community.

         With respect to the evidence of prior subdural bleeding in Jack's brain, Dr. Roberts described Jack's pre-operative CT scan as showing the presence of one or possibly two prior stages of bleeding in the brain as well as the new bleeding. Upon operating on Jack, Dr. Roberts observed, in addition to the new bleeding, "a rapid efflux of older-appearing blood, so very dark, purplish blood . . . as well as some clotted material." He indicated that it was his opinion that Jack "had, at some point prior, another hemorrhage." He indicated that he was unaware of any method for estimating when the prior bleeding had occurred. Dr. Roberts agreed with the suggestion on cross-examination that, due to the prior bleeding, "we are not talking about a healthy brain." He could not offer any explanation for the cause of the old bleeding in Jack's brain, and he further stated, "It is not normal for anyone to have blood inside their head outside of the blood vessels[.]" He also appeared to acknowledge that it was "possible" that the old bleeding had caused some displacement of the brain and had stretched Jack's bridging vein in a way that could contribute to the new bleeding.[10] But he opined that the old bleeding by itself would not have caused Jack's injuries. Specifically, asked whether the old blood could have caused the "constellation" or the "entirety of the injuries, " Dr. Roberts responded, "Not by itself and certainly not because I-I found a brisk bleeding point when I did the surgery." Asked to explain how Jack's prior bleeding could have caused no observable symptoms and required no medical care, Dr. Roberts opined that "chronic subdurals are sometimes asymptomatic" and they "certainly can" heal on their own without treatment.

         Dr. Ranelle, a pediatric ophthalmologist, examined Jack after his craniotomy.[11] She determined that, although his right eye was uninjured, Jack's left eye showed signs of multilayered intra-retinal hemorrhages and retinoschisis, which occurs when the retina splits apart. The left eye also exhibited a chemosis, which is swelling in the conjunctiva. Dr. Ranelle testified that chemosis can occur with traumatic injury. According to Dr. Ranelle, the vitreous base had also separated from the retina in Jack's left eye. Dr. Ranelle opined that Jack's eye injuries were consistent with nonaccidental trauma "in a normal healthy baby." She acknowledged that, given the evidence of prior brain bleeding, Jack was not a "completely healthy child." But she asserted that it was not possible that appellant's version of events had caused Jack's injuries, nor could his injuries have been caused by his prior brain bleeding. Dr. Ranelle agreed with Dr. Roberts's suggestion that Jack's injuries were caused by an accelerating force followed by deceleration. She opined that his collection of symptoms was suggestive of non-accidental injury and was consistent with a very significant traumatic, violent, high-energy force. She indicated that the type of unilateral hemorrhaging exhibited by Jack was "well described in the literature" as being present in cases of non-accidental trauma. Regarding the lack of external physical injuries on Jack, Dr. Ranelle stated that this is "sometimes the case in nonaccidental trauma. You sometimes don't see it outwardly, especially in babies." On cross-examination, she denied being aware of any literature that challenged the use of retinal hemorrhages as a basis for diagnosing intentionally inflicted head trauma. She disagreed with the suggestion that there was a state of unrest in the field of pediatric ophthalmology regarding the validity of a diagnosis of abusive head trauma. She stated, "I would say the majority of my peers would look at this case and come to a similar conclusion as I did." She acknowledged that there were some doctors "who question the validity of retinal hemorrhages in [diagnosing] nonaccidental trauma, " but indicated that she did not "personally know any of them."

         Dr. Coffman, a board certified physician in both general pediatrics and child-abuse pediatrics, evaluated Jack after the initial assessment, surgery, and treatment.[12] She testified that the torn bridging vein and retinoschisis had to be from severe trauma-in particular, a high-energy violent impact or a combination of impact and shaking. She said the injuries could not have been caused by Jack's prior brain bleeding or from falling onto a foam-padded floor from a seated position. In particular, regarding the prior bleeding in Jack's brain, she stated that old blood could not create or contribute to a torn blood vessel, and she further indicated that "rebleeding of chronic subdural[ ] [hematomas] does not cause massive retinal hemorrhages and retinoschisis." Regarding the lack of external bruising, Dr. Coffman stated, "If [the impact is] onto something that's padded, we don't . . . necessarily see external bruising. That doesn't mean that there's not bruising . . . underneath the scalp." She explained that, in her experience, she had observed child autopsies in which the child did not exhibit any external bruising following head trauma, but, "when the child went to autopsy and they reflect the scalp back, there's bruising underneath the scalp." She also testified that there is no "unrest" within the various sub-fields of pediatrics, including pediatric ophthalmology, radiology, and neurosurgery, about abusive head trauma. She indicated that any unrest regarding the diagnostic criteria for abusive head trauma existed in the "biomechanical world" and the "medical examiner world, " but not in the field of pediatrics. She indicated that the American Academy of Pediatrics recognizes abusive head trauma as a valid diagnosis. She also testified that she did not diagnose abusive head trauma based on any triad of symptoms. She described the triad as a "fallacy because we don't make our diagnosis based on a triad." Instead, she suggested that the diagnosis "is based on the individual patient's history, presentation, and findings."

         In contrast to the State's three experts, the defense presented testimony from Dr. Rothfeder, an emergency-room physician who had treated multiple child trauma cases during his decades-long experience as a treating physician and has privately researched abusive head trauma for fifteen years. He testified that the medical community was in a state of disagreement about the principles for diagnosing abusive head trauma and that the dispute was by "far and away the area of greatest dispute in any medical topic I've ever encountered." He stated that the diagnosis of abusive head trauma based on the triad of symptoms was accepted "by the majority of the pediatricians, and I think by the minority of anyone else who is active in the field." He said that the classic triad of symptoms-subdural hematoma, retinal hemorrhages, and brain swelling-previously would have resulted in a shaken-baby-syndrome diagnosis, but that diagnosis has now become the abusive-head-trauma diagnosis. He indicated that some within the biomechanical sciences, ophthalmology and neuro-radiology communities have "come to a different set of conclusions regarding the cause and effect and the medical certainty associated with those conclusions." But he also acknowledged that members of the pediatric-medicine community disagree with those contrary conclusions. He said that the problem with the diagnosis in a case such as this is that a child with no external signs of injury could not likely have suffered an impact in a way significant enough to cause the internal injuries.

         Regarding the particular facts of this case, Dr. Rothfeder stated that the "big issue in this case" is the fact that this "was not a normal child . . . with a normal brain" due to the presence of old bleeding in the brain. Dr. Rothfeder observed that the cause of Jack's prior bleeding could not be identified and that there was "no clinical history that makes any sense that explains where those fluid collections came from." He suggested that, given the existence of prior bleeding, new bleeding could take place "either spontaneously or with minimal trauma"-for example, he cited possible causes of new bleeding as being forceful crying, vomiting, long periods of coughing, or possibly setting a baby down hard. Dr. Rothfeder opined that the old blood in Jack's brain had likely stretched the bridging vein, "putting a tension on" it and "weakening the vein." He stated that, given the old bleeding, "the issue then becomes, well, how does one know in that set of circumstances how much force, if any, is required to . . . initiate that hemorrhage?" He continued by explaining that "the child who has subdural hematomas that are chronic sitting inside the head where one already knows in retrospect that there's been rebleeding is just like a bomb waiting to go off and . . . those were capable of rebleeding almost at any point in time with-with who knows what kinds of trigger." He opined that Jack's brain swelling was probably caused by cardiac arrest, which then led to retinal hemorrhaging. Another possible theory put forth by Dr. Rothfeder was that Jack suffered an asymptomatic birth-related subdural hematoma that did not resolve and finally broke loose on the day in question.

         In addition to the witness testimony, both appellant and the State presented the court with scholarly articles addressing the reliability question in this case. The State provided the court with an article by Dr. Sandeep Narang, J.D., M.D., titled, A Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome, in which the author concludes that the theory of abusive head trauma is widely accepted within the relevant scientific community and has been thoroughly researched.[13] Appellant provided several articles that appeared to question the validity of abusive head trauma as a proper diagnosis, including an article by Dr. Steven Gabaeff titled, Challenging the Pathophysiologic Connection between Subdural Hematoma, Retinal Hemorrhage and Shaken Baby Syndrome;[14] an article by Dr. Mark Donohoe titled Evidence-Based Medicine and Shaken Baby Syndrome;[15] and a law review article titled, The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts.[16]

         At the conclusion of the evidence, appellant asked the trial judge, "as the gatekeeper . . . to find this medical theory that is being urged in the court unreliable." Counsel stated that her objection was "based on the . . . medical evidence in general, as well as the specific facts of this particular case and how that runs in conjunction with the facts we have presented before this Court." She asserted that the State's experts had relied upon a faulty or unproven medical theory in forming their opinions and that their "expert diagnosis that a child has been abused" was also flawed. In response, the State argued that the pediatric medical community was in broad agreement that abusive head trauma was a valid diagnosis; that the theory had been the subject of extensive research and testing; and that those who challenged the theory's validity constituted a "vocal minority." In addition, regarding the facts of this case, the State noted that Jack's injuries went beyond the "triad" of symptoms because he also had avulsion of a bridging vein and retinoschisis "that they've never seen in anything other than violent trauma." After the parties made their respective arguments on appellant's Daubert/Kelly motion, the trial judge stated that he would delay his ruling on the motion because he "need[ed] some time to review all of this material." The trial judge did not rule on appellant's motion until a later hearing. At that subsequent hearing, the judge overruled appellant's motion, found appellant guilty, and sentenced her to five years' imprisonment. The judge explained that his decision to overrule appellant's motion was premised on his determination that the State's experts' testimony met the reliability requirements of Rule 702, Kelly v. State, [17] and Daubert.

         Proceedings in the Court of Appeals

         On appeal, appellant raised a single point of error in which she challenged the trial court's admission of what she characterized as unreliable medical expert opinion testimony on abusive head trauma. Wolfe v. State, 459 S.W.3d 201 (Tex. App.-Fort Worth 2015). At the outset of its analysis, the court of appeals determined that the arguments presented in appellant's brief were limited to challenging "only the reliability of the State's medical expert testimony regarding a diagnosis of abusive head trauma-in general-on the basis of the 'triad' of subdural hematoma, retinal hemorrhaging, and brain swelling, without evidence of external injuries." Id. at 211. Thus, the court concluded that appellant's complaint did not encompass any argument that the experts' diagnosis in this particular case was unreliable based on Jack's medical history of previous bleeding in the brain. Id. ("In other words, [appellant] argues only that the general theory behind diagnosing abusive head trauma is flawed, relying on debate and disagreement within the scientific community about the general theory. . . . Appellant does not, at any point within her brief, alternatively argue that even if a diagnosis of abusive head trauma could be reliable with respect to a typical patient based on the symptoms that Jack presented with, it was not reliable as to Jack based on his prior medical history, including the prior bleeding in his brain."). Based on this assessment, the court of appeals indicated that it would "examine only the general reliability of testimony relating to diagnosing abusive head trauma." Id.

         Second, the court of appeals held that the trial court did not abuse its discretion by overruling appellant's objection and admitting the evidence provided by the State's experts. Id. at 212. Applying the factors from Kelly v. State, [18] the court of appeals reasoned that the experts, who "demonstrated their unchallenged qualifications to testify about pediatrics generally and the injuries Jack suffered specifically, clearly articulated the conditions under which they diagnosed abusive head trauma and confirmed that the pediatric medical community generally accepts the diagnosis of abusive head trauma from the types of injuries that Jack suffered." Id. The court of appeals further noted that the State had provided the trial court with "literature supporting the diagnosis of abusive head trauma with the types of injuries that are present here, " and it took note of decisions from other courts "that have upheld convictions based on such testimony." Id. Regarding appellant's evidence that suggested the existence of some unrest within certain areas of the medical and biomechanical engineering communities regarding the validity of a diagnosis of abusive head trauma based on the "triad" of symptoms, the court of appeals acknowledged that evidence but determined that "that disagreement in and of itself does not make the State's expert testimony unreliable." Id. at 213; see also id. at 213-14 ("[E]ven if the principles supporting the testimony are not universally accepted in various medical fields, we cannot hold that the State presented inadmissible junk science.") (citations omitted). Further, to the extent that appellant had cited sources challenging the reliability of a diagnosis of abusive head trauma based on shaking alone, the court of appeals deemed those sources "inapposite because both Dr. Roberts and Dr. Coffman testified that Jack's injuries could not have occurred by shaking alone." Id. at 213. The court of appeals concluded that the trial court had not abused its discretion by admitting the challenged evidence, and it overruled appellant's sole point of error. Id. at 214.

         Justice Walker dissented. Id. at 214. She disagreed with the majority opinion's apparent assessment that appellant's argument on appeal did not encompass a challenge to the reliability of the State's experts' testimony concerning abusive head trauma as applied to Jack. Id. Justice Walker would have held that the "subsidiary question of the reliability of the State's experts' testimony concerning abusive head trauma as applied to Jack is fairly included in [appellant's] issue on appeal." Id. Thus, she would have addressed "the issue of whether the expert opinion testimony . . . diagnosing Jack with abusive head trauma (that is, non-accidentally inflicted head trauma) was reliable." Id. Justice Walker further found that a "serious question" existed as to the reliability of the experts' conclusion that Jack suffered abusive head trauma in this case, given Jack's medical history of bleeding in the brain and the lack of any external injuries. Id.

         II. Experts' Testimony On Abusive Head Trauma Based on a Constellation of Symptoms Was Reliable

         In her second ground in her petition for discretionary review, appellant challenges the court of appeals's conclusion that the experts' testimony on abusive head trauma based on a constellation of symptoms was reliable. In particular, appellant asserts that there is extensive "ongoing debate" in the medical community regarding the validity of the diagnosis based "exclusively" on symptoms of subdural hematoma, retinal hemorrhaging, and brain swelling, and she contends that the existence of this debate serves to undermine the reliability of the experts' opinions in this case. In response to this argument, the State contends that the experts' opinions in this case were not based exclusively on a "triad" of symptoms, but were instead arrived at through a process of differential diagnosis that is an "all-encompassing process-of-elimination consideration of every possible cause" based on the particular patient's history and presentation. The State further contends that the abusive-head-trauma diagnosis is widely accepted amongst most esteemed national and international medical organizations as a valid diagnosis and has been the subject of extensive research.

         As we will explain further below after reviewing the applicable standard in Kelly v. State and applying the relevant factors to this case, we disagree with appellant's arguments, and we agree with the State that the experts' testimony in this case was sufficiently reliable. See Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992). We hold that the court of appeals correctly determined that the trial court did not abuse its discretion by admitting the experts' testimony on abusive head trauma based on the types of injuries that Jack exhibited in this case.

         A. Applicable Law

         A trial judge's ruling on the admissibility of expert testimony is reviewed under an abuse-of-discretion standard and will not be disturbed if it is within the zone of reasonable disagreement. Russeau v. State, 291 S.W.3d 426, 438 (Tex. Crim. App. 2009); State v.Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). The admissibility of expert testimony is governed by Texas Rule of Evidence 702, which provides that "[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." Tex. R. Evid. 702. In addition, Rule 705 provides that, if the court determines that "the underlying facts or data do not provide a sufficient basis" for the expert's opinion under Rule 702, the opinion is inadmissible. Tex. R. Evid. 705(c). For expert testimony to be admissible under these rules, the proponent of the expert scientific evidence must demonstrate by clear and convincing evidence that the testimony is "sufficiently reliable and relevant to help the jury in reaching accurate results." Kelly, 824 S.W.2d at 572. "In other words, the proponent must prove two prongs: (1) the testimony is based on a reliable scientific ...

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